Re: [rights] Revisting the Patent and RF/RAND Issues

[Karl Best <karl.best@oasis-open.org>]

Rights TC:

I've answered Bob privately, but there's a few points that I should 
probably make to the entire TC:

1. To the best of my knowledge, the contribution made by ContentGuard to 
the Rights TC was made in accordance with the OASIS IPR Policy; i.e. the 
contributor declared what encumbrances are attached to the contribution 
and promised a RAND license to eventual users of the spec.

2. The OASIS IPR Policy may not be perfect, but it is what governs our 
TCs today. The OASIS Board has on its agenda a review of the policy; 
anyone with input should feel free to send their comments to the Board, 
who represent the membership in governing OASIS. OASIS is, after all, a 
member-driven consortium.

3. I believe that it is beyond the expertise and outside of the scope of 
the TC to declare whether a company's patent is applicable to the work 
of the TC. That said, I understand that any TC member and/or his/her 
employer may be interested in knowing if an outside patent is applicable 
before spending time and effort in developing a specification that may 
be encumbered by the patent. But this is a decision that must be made by 
the individual or his/her employer and cannot be made by the TC.


-Karl


Glushko, Bob wrote:
> A few events in recent weeks have caused me some concern and I'd like to
> propose that the TC discuss them in a courteous and careful manner.  First,
> as we all have known from the beginning of this TC's efforts, there are
> patent infringement lawsuits underway between Microsoft and Intertrust.
> We've been repeatedly told by Content Guard that its patents were supreme in
> the DRM domain  - I can clearly recall Brad Gandee saying that he'd welcome
> any direct challenge to the Content Guard patents - but the absence of
> Intertrust from our TC has always troubled me because of the uncertainty it
> raised about the implementability of our specifications.  Whenever this
> issue was raised, we were told that it was "out of scope" for a technical
> TC.  I disagreed, but like many here, perhaps I have engaged in wishful
> thinking that the Intertrust lawsuit would just go away.
> 
> But it is hard for me to believe that Sony and Phillips would spend nearly
> half a billion dollars to acquire Intertrust, whose only assets are its
> patent portfolio (26 according to some news reports), if the infringement
> claims against Microsoft were baseless.  Sony had a representative in this
> TC for a while, but it is no coincidence to me that he seems to have dropped
> out just before the announcement of the Intertrust acquisition. So we have
> to assume that the litigation will proceed and that it will be successful,
> and we have complete uncertainty about the viability of our work products in
> this TC until this is resolved. I have google'd many times looking for any
> statement by Microsoft or Content Guard about the Sony/Phillips move but
> haven't seen any.  Can anyone in this TC interpret this with any more
> precision?
> 
> In any case, I think it is irresponsible for the TC and OASIS to proceed to
> develop a DRM standard while ignoring the implications for potential
> implementers of the infringement litigations. I can believe that this
> discussion may be out of scope for the TC, but it is surely in scope for
> some part of OASIS, and I think we deserve more than the "heads in the sand"
> response we have gotten.  We need to demand that the OASIS board provide
> some leadership.
> 
> I believe that it is essential for OASIS to take up this matter given the
> W3C's recent decision to impose a royalty-free requirement on all of its
> recommendations.  You don't need a weatherman to know which way the wind is
> blowing on the RF vs. RAND debate for crucial Internet and XML
> specifications.  OASIS has become an outlier, and it needs to respond to the
> will of its members to stay in synch with industry preferences.  A few
> months ago this TC, by a very narrow margin, refused to allow the RF
> requirement to be considered. I think it is time to revisit this issue.
> 
> In addition to the uncertainty created by the Intertrust patents, I believe
> we now face greater uncertainty with respect to the Content Guard ones.
> Some people in this TC might still be confident that Content Guard will
> license its patents on RAND terms.  But we have been shaken by Content
> Guard's recent last-minute declaration to OASIS (Bruce Gitlin, November 26)
> that it believes that its patents are relevant to any implementation of the
> XACML specification.  This disclosure was not made until AFTER the committee
> had approved the specification to be submitted to OASIS.  Furthermore, the
> Content Guard disclosure offers no useful information about what RAND really
> means. I am particularly troubled by the "escape clause" of "then current"
> in the phrase "These licenses will be provided under reasonable and
> non-discriminatory terms and conditions, in accordance with ContentGuard's
> then current licensing practices. 
> 
>  I do not wish to impugn Content Guard's motives in acting this way -
> perhaps it is a case of the right hand not knowing what the left hand is
> doing - but it raises even greater concerns about the implementability of
> the specifications we are developing here.
> 
> So I respectfully request that these issues be on the agenda for the next TC
> meeting.
> 
> Robert J. Glushko, Ph.D.
> Engineering Fellow  
> One Market Street, 13th Floor Steuart Tower
> San Francisco CA 94105
> 415-644-8731
> 
> 
> ----------------------------------------------------------------
> To subscribe or unsubscribe from this elist use the subscription
> manager: <http://lists.oasis-open.org/ob/adm.pl>
> 
> 


-- 
=================================================================
Karl F. Best
Vice President, OASIS
+1 978.667.5115 x206
karl.best@oasis-open.org  http://www.oasis-open.org